Northfield - High Court Judgement

Northfield - High Court Judgement dated 5 June 1996

This is the High Court Judgement ordering Northfield to be transferred to the Village Association. It is apparent that despite what local politicians have said, the High Court made no order as to how the land was to be used.

CH 1992 N No 3324

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

His Honour Judge Rich QC (sitting as a Judge of the High Court)

Wednesday 5th June 1996

BETWEEN

NEW ASH GREEN VILLAGE ASSOCIATION LIMITED

Plaintiff

and

BOVIS (NEW ASH GREEN) LIMITED

Defendant

Upon the trial of this action

Upon hearing counsel for the plaintiff and counsel for the defendant

Upon hearing oral evidence and reading the documents recorded in the court file as having been read.

IT IS ORDERED

1. That the Agreement by Deed dated 29th September 1967 ("the Village Agreement" [1]) in the pleadings mentioned (insofar as the same relates to the land defined in the Amended Statement of Claim as "the Northern Land") be specifically performed [2] and carried into execution provided that a good title can be made to the Northern Land.

2. That the defendant do:

2.1 Within 14 days after the end of the stay of execution granted by paragraphs 6 and 7 of this order deduce to the plaintiff its title to the Northern Land, and

2.2 Within 14 days after notification in writing by the plaintiff to the defendant that good title has been deduced in accordance with paragraph 2.1 of this order convey or transfer (as the case may be) the Northern Land to the plaintiff with good title and free from incumbrances save as provided by the Village Agreement.

3. That the defendant do pay damages of £50,000 to the plaintiff (to include interest down to the date of judgement) [3].

4. That the parties are to be at liberty to apply to a Master in chambers:

4.1 If it shall appear the good title cannot be made to the Northern Land,

4.2 If there is a dispute as to whether good title can be made to the Northern Land, and

4.3 Generally as to the working out of this order.

5. That the costs of the plaintiff of the action shall be taxed by the taxing master (if not agreed) and that such costs (when taxed or agreed) shall be paid by the defendant.

6. That there be a stay of execution of paragraphs 1-5 of this order for 28 days from the date of this order (5th June 1996) in order to give the defendant the opportunity to consider an appeal.

7. That there be a stay of execution of paras 1-5 of this order until the appeal is determined if the defendant shall:

7.1 Serve notice of appeal within 28 days from the date of this order [4], and

7.2 Diligently prosecute such appeal, and

7.3 Within 28 days from the date of this order procure that Bovis Homes Limited [5] should guarantee payment of damages and interest thereon in the form of the draft guarantee set forth in the schedule hereto.

SCHEDULE

THIS GUARANTEE is made the [.....] day of June 1996 BETWEEN (1) BOVIS HOMES LIMITED ("the Guarantor") whose registered office is at [address] and (2) NEW ASH GREEN VILLAGE ASSOCIATION LIMITED ("the plaintiff") whose registered office is at [address].

NOW THIS DEED WITNESSES as follows:

1. This Guarantee is given in consideration of the Plaintiff's forbearance from applying to the court in proceedings in the High Court of Justice Chancery Division of which the short title and reference to the record is New Ash Green Village Association Limited v Bovis (New Ash Green) Limited CH 1992 N No 3324 for an order that the defendant should bring the sum of damages awarded by judgement dated 5th June 1996 into court as a condition of a stay of execution pending appeal.

2. The Guarantor hereby agrees to guarantee due payment by the defendant to the Plaintiff of the damages and interest thereon (as a judgement debt) if and insofar as the award of damages is upheld on appeal or the appeal is not pursued to a hearing.

3. This Guarantee is given without prejudice to any application that the Plaintiff may make for security for the costs of the Defendant's appeal.

EXECUTED as deed etc.

Explanatory Notes (not part of the judgement)

[1] This is explained further in the Appeal. Basically Bovis had promised to give the Village Association Limited any land not required for development by 1988. The Appeal court dismissed Bovis's claims that their planning applications amounted to this.

[2] Specific Performance is a contract law term. It means that Bovis is being told to do what they promised in the agreement.

[3] This money has quite literally gone down the drain, as the VA had to pay almost all this in fixing faulty sewers on Northfield.

[4] Bovis sent a notice of appeal dated 29 July 1996. Their grounds for appeal were:

1. The learned judge erred in law in his construction of the Village Agreement. He should have found that the true and proper construction of the Village Agreement was that if:

(a) the defendant had decided on 31 December 1987 (as indeed it had decided, an agreed fact)

(b) in good faith (as was also an agreed fact)

that the northern land was "required by the [defendant] for development" then the Defendant was entitled to retain the Northern Land.

2. In the alternative, if the learned judge was correct in his construction of the Village Agreement he erred in law in that he wrongly applied his construction to the facts. On the facts as he found them, he should have concluded that the Northern Land was "required by the [defendant] for development"

Click here to go to the appeal case.

[5] Bovis Homes is the parent company of Bovis (New Ash Green). This clause would be important for the VA as they might win the case and find that the subsidiary company has no assets to pay the costs of the case.

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